N.M. Code R. § 9.2.11.11 - HEARING PROCEDURES FOR PETITIONER(S) REQUESTING HEARINGS UNDER SUBSECTIONS 3.5, 3.6 AND 3.7 [now SUBSECTIONS E, F AND G OF 9.2.11.9 NMAC]

A. Request for a hearing: A request for a hearing specifying the nature of the appeal must be made to the state agency on aging in writing within ten (10) working days after the petitioner receives the final action letter from the service provider, area agency or state agency. The request must specify all grounds upon which the petitioner refutes the basis of the proposed action. This request must include:

(1) a copy of the service provider's, area agency's or state agency's action letter;

(2) the dates of all relevant actions;

(3) the names of individuals and organizations involved in the action being appealed; and

(4) a specific statement of any section of the act or federal or state rules or regulations believed to have been violated by the area agency or the state agency in taking the action being appealed.

B. Informal disposition: Upon receipt of request for a hearing, the service provider, area agency or state agency and the petitioner shall attempt to informally resolve the dispute that is the subject of the appeal.

C. Submission of information:

(1) In cases where an area agency decision is being appealed, the area agency shall furnish, within ten (10) working days, copies of the following documents to the state agency, with a copy to the petitioner:

(a) the minutes of the meeting of the area agency's governing body at which the subject action was considered and taken;

(b) the minutes of the meeting of the area agency's advisory council at which the subject action was considered and recommended;

(c) area agency memoranda, staff reports, and evaluations relevant to the action appealed;

(d) the criteria used in awarding the contract involved in the hearing;

(e) application evaluation sheets;

(f) copy of contract(s); and

(g) the petitioner's application and competing applications for the contract involved in the hearing.

(2) Unless the state agency grants an evidentiary hearing, no additional information may be submitted; however, the hearing officer may request additional information pertinent to the review of documents.

D. Evidentiary hearing: If the director determines that an appeal involves a dispute as to a material fact the resolution of which would be assisted by oral testimony, the director may schedule a hearing to take testimony by notifying all parties of the date, place, time and rules of the hearing by registered or certified mail, return receipt requested.

E. Conduct of the hearing: The hearing shall be governed by the following.

(1) Hearing officer: The director shall select an impartial hearing officer to preside at the hearing or serve as the hearing officer himself/herself. The hearing officer may be an employee of the state agency, or a policy advisory council member and the hearing officer may be, but is not required to be, an attorney at law. The hearing officer shall have authority to administer oaths, rule on parties' motions, determine the admissibility of evidence, recess any hearing from time to time, and rule on such other procedural motions as may be presented by any of the parties.

(2) Rules of evidence:

(a) Only relevant and material evidence will be allowed. Evidence will also be allowed if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs. Objections to evidence will be noted in the record.

(b) Documentary evidence may be received by the hearing officer in the form of a copy or excerpt if the original is not readily available. On request, either party shall be given an opportunity to compare the copy with the original.

(c) If a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form prior to the hearing, or the parties may stipulate as to facts or circumstances, or the parties may summarize facts or circumstances.

(d) Either party may conduct cross-examinations to obtain a full and true disclosure of the facts.

(e) The hearing officer may take official notice of generally recognized facts within the area of the state agency's or area agency's specialized knowledge. The hearing officer shall inform the parties of the facts officially noticed either before or during the hearing, or and shall afford the parties an opportunity to contest the facts officially noticed. The special skills or knowledge of the state agency or area agency and their staff may be used in evaluating the evidence.

(f) The parties need not make formal exceptions to the hearing officer's rulings during a hearing. It shall be sufficient that the party informs the hearing officer of the ruling at the time any ruling is made or sought.

F. Oral hearing: When an oral hearing is conducted, the hearing officer will provide that:

(1) the petitioner shall present evidence first. Other parties shall follow and present their evidence. The petitioner may thereafter present rebuttal evidence only. Rebuttal evidence must be confined to the issues raised in all the parties' presentations of evidence. The petitioner shall be given the opportunity to offer a final argument without additional presentation of evidence. In addition, the other party may present a final argument subject to the no additional evidence limitation; and

(2) the hearing shall be completed within one hundred twenty (120) days of the date the request for hearing was received by the state agency.

G. Recording an oral hearing: Any oral hearing shall be electronically recorded. Upon request of any party to the hearing, a copy of this recording shall be made available to the requesting party at cost. In addition, any party may request that a court reporter record the hearing. The requesting party shall select and pay for the services of a reporter. A transcription becomes official when certified by the hearing officer.

H. Record: The record in a hearing under this section consists exclusively of:

(1) a copy of the notice of proposed action that generated the appeal;

(2) the request for hearing, including all amendments;

(3) the notice of hearing;

(4) written information supporting the appeal, which was submitted to the state agency before the hearing;

(5) the state agency's written statement of the issues involved in the appeal;

(6) all motions and rulings made before the hearing;

(7) all evidence received or considered;

(8) a statement of facts officially noticed;

(9) any decision, opinion or report by the hearing officer;

(10) all staff memoranda or data submitted to and considered by the hearing officer;

(11) the recording and transcription, if any, of the hearing;

(12) the hearing officer's recommended decision; and

(13) the final decision.

I. Final decision:

(1) The hearing officer shall present a recommendation for the final decision to the director within ten (10) working [days] following the administrative or oral hearing.

(2) The director shall issue a final decision based on the hearing officer's recommendation and on the record. The director shall not substitute his/her judgment for that of the area agency as to the weight of the evidence on matters committed to the area agency's discretion. The director shall affirm the action heard unless it is unlawful, arbitrary or not reasonably supported by substantial evidence in the record.

(3) The director shall render a final decision within ten (10) days after close of the hearing. The director shall send a copy of the final decision to all parties by registered or certified mail, return receipt requested, within five days after it is rendered.

Notes

N.M. Code R. § 9.2.11.11

Recompiled 10/01/01